Summary: A $399 million judgment against Android devices from Samsung, with potential implications for other Android OEMs, is rejected by SCOTUS
Excellent news came through AP several hours ago: “Supreme Court throws out $399 million judgment against Samsung in company’s patent dispute with Apple over iPhone design.”
There will certainly be plenty of coverage about this, including quite a lot of rants from Apple advocacy sites. Apple lost a design/UI patent case. It has actually lost quite a few cases against Samsung by now. Many other patents in this domain will be generally lost too, by means of precedence (how many patents out there are no longer valid?).
Here is what Professor Crouch, who followed this case pretty closely, had to say:
In a unanimous opinion authored by Justice Sotomayor, the Supreme Court has reversed the Federal Circuit in this important design patent damages case. Although the case offers hope for Samsung and others adjudged of infringing design patents, it offers no clarity as to the rule of law.
There is also this bit of news that’s covered a week late and says:
Apple v. Ameranth: Federal Circuit Partially Reverses PTAB and Finds All Claims for Electronic Menus Unpatentable
On November 29, 2016, in Apple Inc. v. Ameranth, Inc. 15-1703, the Federal Circuit affirmed the Patent Trial and Appeal Board (PTAB) findings of unpatentable independent claims in a Covered Business Method (CBM) review and reversed findings of patentable dependent claims under 35 U.S.C. § 101. On appeal, the Federal Circuit agreed with Apple that there was sufficient evidence to support the finding that dependent claims 3, 6-9, 11 and 13-16 of Ameranth’s U.S. Patent No. 6,982,733 (‘733 patent) were unpatentable as describing insignificant post-solution activities. Despite Ameranth arguing for a substantial evidence standard of review, the Federal Circuit applied a de novo review standard in its reversal of the PTAB’s decision.
Things don’t look too promising for Apple in this CAFC case and another CAFC case, Ameranth, Inc. v. Agilsys, Inc., now gets covered in another site (it’s about PTAB). █
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Witness those truly innovative things — the work of pure genius! — which are rounded corners!
Summary: A quick roundup of recent articles/reports/analyses about Apple v Samsung, including the impending Supreme Court (SCOTUS) case
APPLE’S longstanding patent war with Samsung (or Android, having started to attack it more than 6 years ago) has become a high profile story and probably the leading example of patent litigation in recent times, with a lot of money at stake.
As expected, patent lawyers go ahead and push forth their fairly tales about patents being surrogates for “innovation” (the 1%’s protectionism), this time in relation to Apple and Samsung. To quote Patent Lawyer Magazine:
The recent and numerous cases opposing companies like Apple and Samsung or Google and Oracle highlight that, today, patents are defensive weapons as well as offensive weapons according to the strategy developed by the holder. Many companies notice lately this functional ambivalence of the patent, just as a patent-related dispute happen, like its violation by a counterfeiter party who reproduces without any authorization the protected invention.
If adopting a strategy of patent application may appear expensive in front of the strategy of the secret which consists in keeping the invention undisclosed, it must be clear that the patents ensure an effective legal protection of the inventions against potential counterfeiters and also permit to the innovative companies recouping their Research & Development costs as a patent owner will be able to negotiate royalties for license agreements signed with firms interested in the use of the patented technology.
That’s a rather misleading framing. If one actually considers which patents Apple is suing with/over, then one hasn’t any doubts; it’s not about innovation at all. Maybe it’s about “first to file” or something along those lines. We have covered these patents many times over the years.
As should become apparent pretty soon — because certainly corporate media will be all over it — Apple’s patent war against Samsung will be discussed at SCOTUS, with design patenting as a whole coming under scrutiny. Here is an overview of some more cases to be discussed by SCOTUS:
Constitutional Challenge to Inter Partes Review: Although the Constitutional issues in Cooper v. Lee and MCM v. HP were law-professor-interesting, they were not substantial enough for certiorari. The Supreme Court has now denied the Cooper and MCM petitions — leaving the IPR regime unchanged. Although Cooper v. Square is still pending, its chances are slight. The Supreme Court has also denied certiorari in Encyclopaedia Britannica (malpractice), Gnosis (appellate review), and GeoTag (case-or-controversy).
A new 101 Challenge: In its first conference of the term, the Supreme Court denied all of the pending petitions regarding patent eligibility. However, Trading Technologies has filed a new petition asking whether a new card game is categorically unpatentable so long as it uses a standard deck (rather than a novel deck) of cards. My post on the case asks: Does the Patent Statute Cabin-in the Abstract Idea Exception? That question references Section 100 of the Patent Act that expressly allows for the patenting of new use of a known manufacture.
Extra Territoriality of Trade Secrecy Law: On the trade secrecy front, Sino Legend has petitioned to review the Federal Circuit’s affirmance of the International Trade Commision’s ban on Legend’s importation of rubber resins used for tire production. The underlying bad-act was a trade secret misappropriation that occurred in China and the question on appeal asks: Whether Section 337(a)(1)(A) permits the ITC to adjudicate claims regarding trade secret misappropriation alleged to have occurred outside the United States. A Chinese court looked at the same case and found no misappropriation.
Design Patent Damages: Oral arguments were held earlier this week in Samsung v. Apple. During the arguments, all parties agreed that (1) the statute does not allow for apportionment of damages but rather requires profit disgorgement; (2) the article-of-manufacture from which profits can be calculated may be a component of the product sold to consumers; and (3) the determination of what counts as the article-of-manufacture is a question of fact to be determined by the jury. The only dispute then was on the factors that a jury should be considered and when the “inside gears” of a product should ever be included in the calculation.
The fourth paragraph is about Apple (design patents, not software patents) and the second paragraph speaks of a Section 101 challenge, which isn’t yet likely to happen. Alice is likely to stay here for a long time to come. The focus of the above cases, or the framing that Patently-O has chosen, is ITC. The I in ITC stands for “international” — surely a misleading label. It’s like calling the KGB “international” because it goes (or went) abroad in order to get its way for its home country. The ITC is to US corporations what the FSB is to Russia’s government (or the Kremlin) and we should recognise that there’s nothing “international” about it. It’s not the UN. Now that the patent battles target Asian companies like Samsung IAM likes to obsess about the subject. This patent trolls-funded site wishes us to believe that patent tax that makes phones worse (removed features to avert risk of lawsuits) and more expensive is a desirable aspect. Phones from Samsung almost literally explode and all that IAM can think about is patents, patents, and more patents.
Over at MIP there has been more coverage of the above patent case of Apple v Samsung. Florian Müller foresees more action in this domain (not involving only design patents but much more).
Little attention is being paid to Apple’s practices or tradition of tax evasion with patents as a financial instrument. It continues to happen in Ireland where Apple has a notorious tax-dodging operation and pro-Apple sites touch on the subject yet don’t quite get to the bottom of it (“Apple Moves $9B Worth of iTunes Intellectual Property To Ireland”). Remember what we wrote about Patent Boxes earlier this year.
Joseph Robinson & Robert Schaffer (over at Watchtroll) write about a related case (a different Apple v Samsung). It is apparent that this site is growingly concerned about yet another case reaffirming the death of software patents in the US. Apple has more than one case against Samsung; there are software patents at stake as well, hence the relevance to us. Watchtroll is still opposing patent reform and uses the terminology of anonymous Twitter accounts that taunt us, e.g. “Efficient Infringement”. What a cesspool Watchtroll has become…
Going back to Müller, here is what he recently wrote about both Apple v Samsung cases that are high profile:
Was it just a coincidence that the Federal Circuit made a decision on an Apple petition for a rehearing about eight months after the original decision and just days before the design patents hearing in the top U.S. court? It may very well have been. But when there are already other oddities (such as the decision not to invite further briefing from the parties and hold a rehearing), it’s not impossible that there is a hidden message or agenda.
The Federal Circuit decision certainly gives Apple leverage. Limited leverage, though: the relatively most valuable one of the three patents on which Apple had prevailed at the spring 2014 trial has expired and the most iconic one, slide-to-unlock, is about as valuable in the age of Touch ID and comparable technologies as an ISDN or floppy disk patent.
“Experts Urge Supreme Court To Take A Bite Out Of Apple’s Patent Win Over Samsung,” said this recent report, stating: “As two of the world’s largest consumer electronics companies face off at the Supreme Court Tuesday, experts in legal, patent, technology and consumer advocacy fields are urging the Supreme Court to overturn a ruling in the smartphone war between Apple and Samsung that awarded the iPhone maker the total profit of patent-infringing Galaxy devices.”
Matt Levy wrote about this also [1, 2]. That was 2.5 weeks ago when he pulished some thoughts about “A Funny Thing [That] Happened on the Way to the Court” and to quote:
A funny thing happened on the way to the Supreme Court in yesterday’s Samsung v. Apple design patent dispute. The high court was expected to review the lower court’s award of the entire profits made for 11 different smartphone models — just under $400 million.
Unexpectedly, some time before the argument Apple had agreed to concede that the “article of manufacture” didn’t have to be the entire product sold. That is, Apple agreed with Samsung and the government that the answer to the question that the Court had agreed to decide is “Yes.”
Will design patents not be challenged even by Samsung after all? IAM (wshfully) thinks there may be alignment on the horizon. To quote: “For the last couple of years it has been apparent that the smartphone wars that have raged in US courts since 2009 have been reaching their final skirmishes. Peace deals between the likes of Microsoft and Google and Apple and Google, have brought many of the battles to an end. Except, that is, for what has probably been the most significant confrontation – Apple v Samsung.”
There’s no “Microsoft and Google” “peace deal”; Microsoft continues to attack Android OEMs with patents and it was Microsoft that initiated antitrust action against Android in Europe. Microsoft is a malicious firm that would lie to anyone, anytime.
Joe Mullin asked: “How much punishment is appropriate when it comes to design patents?”
MIP’s coverage at the time spoke of the arguments and Patently-O offered a “view from inside the courtroom”. It said:
At oral argument, Samsung informed the Court that it was dropping its “causation argument” (i.e., that § 289 must be read in light of background causation principles from general tort law) and wanted to focus on its “article of manufacture” argument (i.e., its argument that a successful design patentee should be entitled to the “total profit” from the “article of manufacture” but that the relevant article should be determined mainly by looking at whether the patent claims a whole design or only part).
We eagerly await rulings against Apple in both cases, one involving software patents and another design patents, which in this case closely resemble software patents in multiple ways/aspects. What’s at stake here isn’t just the price of Samsung phones but the financial viability of Android (Linux-based) phones in general. █
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Summary: Microsoft-connected patent trolls like Larry Horn’s MobileMedia are still attacking Microsoft rivals and Microsoft wants more money from Korea, after it attacked Linux with software patents over there (notably Samsung and LG)
“US Pat RE39231,” wrote a patent attorney, eventually meant that “Apple Must Pat MobileMedia $3M for Infringing this Patent” (MobileMedia is not as real company and we wrote about it before, in relation to MPEG-LA and Larry Horn; we wrote about him in [1, 2]).
How many people out there know that MPEG-LA is a patent troll whose head himself is/was a patent troll? Not many people know this. Horn relies on dishonest lawyers from Proskauer Rose and sues Apple, which itself is part of MPEG-LA (we already took note of how bizarre this is).
Well, “Apple loses ringtone infringement case to Nokia and Sony’s patent troll firm,” according to the headline of this report. To quote: “Apple has been ordered to pony up $3 million in damages by a Delaware judge for infringing the patent of a firm partially owned by Sony and Nokia. The case, which has been running since way back in 2010, saw MobileMedia Ideas originally accuse Apple on 16 counts of patent infringement. Six years and plenty of court activity later, the original claim has been whittled down to just one patent pertaining to iPhone ringer alerts, for which MobileMedia has been awarded a tidy sum of money.”
A patent troll connected to Nokia — a legacy of Microsoft entryism and subsequent passage of patents to trolls like MOSAID — is somewhat of a pattern we’ve seen a lot of recently. Android too is being targeted by these trolls.
“MobileMedia Ideas just won a Delaware trial against Apple over a former Sony patent,” Florian Müller wrote about it. “May file further lawsuit now over iPhone 4S and later.”
Tom O’Reilly from Mobile Media Ideas is advertising for this patent troll. He passed around the press release “MobileMedia Ideas Wins Trial against Apple” and it said:
(CHEVY CHASE, MD, US – 21 September 2016) – MobileMedia Ideas LLC is pleased to announce that the US District Court for the District of Delaware today found MobileMedia Ideas’ “polite-ignore” patent (Re 39,231) for mobile phone call silencing valid and infringed by the iPhone 3G, 3GS and 4 and awarded $3M in damages. The case did not include the iPhone 4S, 5/5C/5S and 6/6 Plus on which there may be further proceedings. The patent was filed in 1994 by Sony Corporation, a pioneer in the development of mobile and other consumer electronics technology, and is now part of the patent portfolio licensed by MobileMedia Ideas.
MobileMedia Ideas President and CEO Larry Horn said, “We thank the jury for its service and hard work. This case could have been avoided by the taking of a license, however. MobileMedia Ideas’ business model is based on offering reasonable licenses to a valuable portfolio of important inventions widely practiced across a broad array of mobile phone and other portable products. We still welcome Apple to respect intellectual property developed by others with the taking of a license.”
MobileMedia Ideas was represented by a team of litigators at Proskauer Rose led by Steve Bauer and Kim Mottley of the Boston office.
In relation to an article/report mentioned here earlier this week, there is now an important update. Coming from the Korea Times, it says that the tax authority is likely to reject Microsoft’s appeal for refund of tax. To quote the opening parts:
The South Korean tax authority is expected to reject an appeal by U.S. software giant Microsoft Corp. to refund 634 billion won ($575.7 million) in a withholding tax, according to the tax authority and industry sources Thursday.
Microsoft filed complaints last month against the National Tax Service (NTS), seeking a refund of the withholding taxes paid by Samsung Electronics Co. to the NTS for using the software giant’s patents.
When will Microsoft pay the tax it has evaded? Above the law, still? A lot of the above sum comes from Linux-powered devices (we wrote about this many times before).
Those who believe that Microsoft has changed surely aren’t paying attention to what it does through patent trolls, through Nokia (which Microsoft demanded should pass patents to trolls), and in various distant countries like Korea. Microsoft just became a little more covert in its war against Linux. █
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Quality of patents causes markets to prosper or contrariwise perish
Giving aggressors like Microsoft sacks of patents to breed Mafia-like behaviour, not healthy competition
Summary: Revisiting the EPO’s vision of poor patent examination and the effect of discriminatory granting practices, favouring patent bullies such as Microsoft (which actively attacks Linux using low-quality and usually pure software patents)
“A skilled patent attorney working with a qualified searcher could cobble together a colorable obviousness argument against the vast majority of issued patent claims,” says a new article from Patently-O. Not to mention “abstract” criteria, prior art and so on. “Part of the difficulty for patentees,” continues the article, “stem from the the billions of prior art references available via increasingly effective search tools. Even when an invention results from a ‘flash of genius,’ patent law typically back-fills extensive knowledge for the obviousness analysis – even when that knowledge was not actually available at the time of the invention. The larger difficulty though is likely the large number of hard-to-pin-down facts such as the motivations, common sense, and level of creativity of a person having ordinary skill in the art.”
“In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO]) can be used to compel companies to pay up without even a trial.”If the EPO replaces examiners with algorithms, things will exacerbate further and patents get granted incorrectly, leading to an ocean of frivolous lawsuits. In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO) can be used to compel companies to pay up without even a trial. Recall the Microsoft v TomTom case. Picking on small companies is Microsoft’s thing; it doesn’t sue Google.
The above reminds us of the danger of poor patent quality as well as streamlining grants, which is what Battistelli’s EPO has in effect done for Microsoft (and evidence we showed for that led to legal threats from the EPO). They — like the USPTO — in effect facilitate patent racketeering by Microsoft.
“They — like the USPTO — in effect facilitate patent racketeering by Microsoft.”Watch this new article titled “Primetime: Microsoft’s Android Cross Patent Dealings”. That’s misleading because it's not cross-licensing, it's a patent settlement (in bundling form) and it’s essentially a patent shakedown without even a trial and without an opportunity to properly assess the quality (and thus in/validity) of patents. The article says that “to press on this advantage, Microsoft does need to sign into more cross licensing or similar patent deals with manufacturers. Given Microsoft’s patent portfolio and how useful this will be to those manufacturers wishing to break into the North American market, such as Xiaomi, we may be seeing more of these arrangements in the coming months. The alternative might be Microsoft suing any manufacturer that tries to sell devices into a patent-friendly market.”
But again, these are not cross-licensing deals, these are patent shakedowns. One might even call this extortion or racketeering, even though Microsoft is too well-connected to face court charges brought forth by the government.
It is worth noting that many of Microsoft’s patents — those which it uses to shake down Android players (OEMs) — are not even valid anymore (if properly scrutinised), but there are so many of them that it would cost a fortune to demonstrate it to the court. It’s a numbers game, quantity rather than quality. It’s cheaper to just settle and let Microsoft continue to wield software patents like a weapon, even post-Alice. PTAB cannot take a request to review hundreds of patents from just one single company because it’s already overburdened by a growing number of reviews (IPRs).
Speaking of patent aggressors, there is this new software patent from Facebook (the usual, see our Facebook wiki page). These are oftentimes surveillance patents, but this time is’s about languages, at a time of increased competition with Google. Facebook's growing stockpile of patents is a real problem (Facebook has a history of going aggressive with them) and The Next Web says that “the US patent office issued 6,789 patents. Each patent adds a little something new to the human knowledge base. As we cannot list all six thousand, the PatentYogi team has selected the five most interesting patents.” How many of these are software patents that oughtn’t have been granted? How many of these will be toothless some time in the near future?
Patently-O says “The number of pending Ex Parte appeals continue to drop. Great work PTO.” There are other statistics of interest, based on PDFs from the USPTO (like this one). Patently-O claims they suggest that: “Design patent applications expected to reach 40,000 for FY2016 – up from under 30,000 in FY2010. The PTO is working to improve design patent prosecution speed – current wait of more than a year for a first office action.”
Well, the Office may have granted 40,000 patents on designs, but once reassessed the Office may need to throw them all away, on a per-request basis (post-Apple v Samsung at SCOTUS). Granting again for the sake of granting? Until the next Alice happens?
Patent quality control is the principal pillar of true and potent patent offices, otherwise they would be just archives of untested claims (a registration/filing system). █
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Rounded corners? Apple’s invention!
Summary: Apple’s insistence that designs should be patentable could prove to be collectively expensive, as patent trolls would then use a possible SCOTUS nod to launch litigation campaigns
TROLLS, or patent sharks, typically use software patents, but what if they also had design patents at their disposal?
Apple‘s war on Android, which manifested itself in a now-settled case against HTC and later in a long patent war against Samsung, may prove to be counterproductive now that Apple attracts patent trolls like VirnetX, to which it might be forced to pay billions of dollars. A pro-software patents site now says that “Apple will also be an even richer target for the new breed of design patent trolls” if it wins its case against Samsung/Android (over design patents). To quote this new article:
On October 11, 2016, the Supreme Court will hear Samsung’s appeal of the Federal Circuit’s affirmation of the jury’s damage award to Apple of Samsung’s “total profits” on sales of the infringing smartphones even though it had only infringed Apple’s design of the iPhone’s outer shell. In upholding the “total profits” award, the Federal Circuit determined that it was bound to uphold the jury’s award by the “explicit” and “clear” statutory language relating to design patent infringement damages.
The importance of the Supreme Court’s ultimate ruling here is underscored by the numerous amicus curiae briefs filed (27 at last count). With over 205 billion in cash reserves at last count, Apple certainly doesn’t “need” the full nine-figure damage award. And, given the far reaching implications of this case, Apple may live to regret its aggressive pursuit of “total profits” for design patent infringement by finding itself battling design patent holders seeking to recover Apple’s total device profits for infringement of even a minor design feature. Apple will also be an even richer target for the new breed of design patent trolls already surfacing based, at least in part, on Apple’s success in this case. Clearly it is time for Congress to step in and amend Section 289 to add apportionment language.
No wonder technology companies are overwhelmingly supportive of Samsung in this case — a high-profile case over design patents.
In other news, Vera Ranieri from the EFF has this new update about one of their high-profile cases against patent trolls. Ranieri writes:
There has been significant activity relating to cases and patent infringement claims made by Shipping & Transit, LLC, formerly known as ArrivalStar. Shipping & Transit, who we’ve written about on numerous occasions, is currently one of the most prolific patent trolls in the country. Lex Machina data indicates that, since January 1, 2016, Shipping & Transit has been named in almost 100 cases. This post provides an update on some of the most important developments in these cases.
In many Shipping & Transit cases, Shipping & Transit has alleged that retailers allowing their customers to track packages sent by USPS infringe various claims of patents owned by Shipping & Transit, despite previously suing (and settling with) USPS. EFF represents a company that Shipping & Transit accused of infringing four patents.
The above is a timely and good example. It demonstrates not just of the harms of patent trolls but also the harms of software patents, which in the large majority of cases rely on them. If Apple made design patents stronger, with affirmation from the Supreme Court (SCOTUS), the damage would be enormous.
Apple is on the wrong side of history. █
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Summary: Apple’s frivolous lawsuits against Android OEMs win the support not of technology companies (these actually oppose Apple’s actions) but of some “non-tech companies, high-profile designers and intellectual property associations”
A few days ago we mentioned Florian Müller‘s latest article on Samsung v Apple (or vice versa) — an article which he later corrected for errors (amici overlooked or simply not yet listed at the time). It turns out that Müller wasn’t far from the truth, however, as technology companies pretty much reject Apple’s position. Müller has since then continued to highlight Samsung matters such as this likely new IPO or Google’s antitrust worries in Korea [1, 2], the home of Samsung. “The South Korean government has delayed a decision on whether it will accept Google’s request to export South Korea’s detailed map data,” one of those articles says. “Less than 2 months to go until the Samsung v. Apple Supreme Court hearing on design patent damages,” he wrote about the case which involves patents granted by the USPTO in spite of their low quality (the EPO made similar mistakes under Battistelli).
“It turns out that Müller wasn’t far from the truth, however, as technology companies pretty much reject Apple’s position.”Not too long afterwards MIP published this article that says: “Ahead of a showdown over design patents at the Supreme Court in October, Samsung has received more support from US technology companies whereas Apple has received the backing of non-tech companies, high-profile designers and intellectual property associations” (i.e. not quite producing companies). Patently-O wrote about this as well, noting that Apple’s “visual design is critically important in the sales of complex products.” That’s just branding and hype (or compelling marketing), i.e. the bread and butter of Apple. Patent-granting should be a scientific process, entirely disconnected from hype or brand recognition. █
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And why EPO policies under Battistelli will emulate the worst aspects of the USPTO
Summary: The Government Accountability Office (GAO) explains that decline in patent quality in the US is responsible for a hostile environment which fosters litigation rather than innovation; BlackBerry the latest example of patent assertion firms (trolls) which would make phones ‘dumber’ (features like a mechanical keyboard removed or never added in the first place)
LAST month we wrote about GAO in relation to the EPO [1, 2], demonstrating that the US patent system has gone out of touch and increasingly disconnected from the raison d’être of patents.
A good but somewhat belated article from TechDirt covers this topic, citing the Government Accountability Office for support:
This shouldn’t be a surprise. All the way back in 2004, in Adam Jaffe’s and Josh Lerner’s excellent book about our dysfunctional patent system, Innovation and Its Discontents, one of the key problems they outlined with the system was the fact that there was strong incentives for patent examiners at the US Patent Office to approve shit patents. That’s because they were rewarded for how “productive” they were in terms of how many patent applications they completed processing. Now, you might think that shouldn’t encourage approvals — except that there’s no such thing as a true “final rejection” from the patent office (they have something called a final rejection, but it’s not — applicants can just make some changes and try again… forever). So rejecting a patent, inevitably, harms your productivity rates as an examiner. Approving a patent gets it off your plate and is considered “done.” Rejecting it means having to spend many more hours on that same patent when the inventor comes back to get another chance.
After Jaffe and Lerner made that criticism clear, it seemed like the Patent Office started to take the issue to heart and they actually started changing some of how examiners were rated. And, for a few years, it seemed like things were heading in the right direction. But then, once David Kappos took over, he noticed that a lot of patent holders were complaining that it took too long to get patents approved. Apparently ignoring all of the evidence that pushing examiners to review patents quickly ends up in disaster, Kappos put back in place an incentive structure to encourage examiners to approve more patents. He kept focusing on the need to get through the backlog and speed up the application process, rather than recognizing what a disaster it would be. Of course, some of us predicted it and were mocked in the comments by patent lawyers who insisted we were crazy to suggest that the USPTO would lower its standards.
Of course, an academic study a few years ago found that was absolutely happening and now, to make the point even clearer, the Government Accountability Office, which tends to do really fantastic work, has written a report that agrees. It blames the Patent Office’s focus on rapidly approving patents for the flood of low quality patents and the resulting patent trolling epidemic…
Noting that last part about a “trolling epidemic” (to the point where 90% of all technology lawsuits are filed by trolls), we wish to highlight the correlation between abstract software patents and software patent trolls. Since half a decade ago we have highlighted the strong correlation between patent trolls and software patents, so had the USPTO stopped granting patents on software, a lot of this “trolling epidemic” would go away almost entirely. It would not be a viable business model for reasons we explained here repeatedly over the years. Given an extraordinary number of patents granted to BlackBerry (far too many to be deemed high quality), this is relevant to the past week’s news. BlackBerry, which is rapidly becoming a troll (or PAE) down in Texas [1, 2], has generated more and more headlines in recent days, e.g. [1, 2, 3, 4, 5, 6]. “Blackberry is now a troll,” wrote Benjamin Henrion (FFII). “Too bad NTP did not kill them 10 years ago.”
BlackBerry is one among many such companies. Apple, for example, having totally lost the plot to Android in India (where Android is now estimated to have 97% of the market; see daily links for details), is suing endlessly. Is there another Apple-Samsung patent war in the making? As one site notes right now: “Samsung filed a patent for a smartwatch with a detachable strap. Detachable band straps are already there. So, what’s the big deal? Their new smartwatch looks like the Apple’s iWatch. Now, that’s a big deal.
“Samsung is not eyeing another patent war with Apple, hopefully, they aren’t. Because, the last time when they did it, they had to suffer for it. A California court had ordered Samsung to pay 548 million dollars.”
“It would mean that phones must have features and parts removed from them.”Apple has been suing Android OEMs for more than 6 years, starting with HTC. We expect BlackBerry to do the same thing pretty soon. Does that mean more innovation? Quite the contrary. It would mean that phones must have features and parts removed from them. █
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“The most dangerous moment for a bad government is when it begins to reform.”
–Alexis de Tocqueville
Summary: Highlighting some of the differences between the US patent system and other patent systems
THE most notable deficiency at the USPTO right now pertains to overly broad patent scope and poor patent quality (the same direction which the EPO takes under Battistelli) and this leads to a lot of litigation by patent trolls. Startups (sometimes known here as SMEs) suffer the most and we rarely hear their stories because they must settle in secret and pay ‘protection money’ to non-practising entities. This clearly does not promote innovation. A lot of this activity, perhaps more than 90% of it (on a global scale), happens in the United States.
“It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps.”As of days ago, Ericsson’s case (via a patent troll it increasing uses inside Europe) against Apple found momentum at the Court of Appeals for the Federal Circuit (CAFC), home of software patents, according to this short report and BlackBerry has just beaten Mobile Telecommunications LLC, after this apparent troll (whose whole public existence revolves around this lawsuit) started a high-profile patent case in the US (BlackBerry is Canadian, but it can be dragged down south).
Leading Android OEMs are also embroiled in a patent war in the far east (Asia) and there are lots of articles about it [1, 2, 3, 4] (many hundreds in English alone, so they should not be hard to find even several years down the line).
What’s worth noting here is that in Asia, where a lot of the world’s phones are actually being made, patent trolls are hardly even a topic, whereas in the US patent trolls have become an epidemic. They are sometimes proxies of large companies such as Ericsson. In the case of Nokia, Microsoft has already created or armed trolls using its patents.
It is important to realise the difference between two manufacturing Android giants like Samsung (Kroea’s domain leader) and Huawei (China’s domain leader) having patent disputes and some random LLC du jour trying to tax large companies as well as small ones (these latter cases rarely make any headlines). It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps. █
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